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EXCISE INSPECTOR v. PONNADURAI
NLR31V508
1930 Present: Lyall
Grant J.
EXCISE INSPECTOR v. PONNADURAI
211-213-P.C. Mullaittivu, 10,744.
Excite Ordinance-Unlawful possession of
arrack-Illegal transportation-Offences in respect of the same act-Legality of
conviction- Ordinance No. 8 of 1912, s. 50.
A person may be convicted of the offences of unlawful possession and unlawful
transport of arrack in respect of the same act.
APPEAL
from a conviction by the Police Magistrate of Mullaittivu
Subramaniam, for appellant in No. 211.
Charavanamuttu, for appellant in No. 212.
Gnanaprakasam (with Tyagarajah), for appellant in No. 213.
Crossette Thambiah, C.C., for the Crown.
May 26, 1930. LYALL, GRANT J.-
This is an appeal by three accused against convictions for (1) possessing an
illegal quantity of arrack without a permit in breach of section 16 of the
Excise Ordinance, and (2) with transporting the same illegal quantity of arrack
without a permit in breach of section 12 of the same Ordinance. There is also an
appeal by the owner of a motor car against an order of confiscation of the ear
made in connection with these proceedings.
The first accused pleaded guilty to the offence with which he was charged in the
Police Court and was fined Rs. 500 on each court. The second and third accused
pleaded not guilty, but were convicted on each count and fined the same amount.
The owner of the car was called upon to show cause why his car should not be
confiscated and an order of forfeiture was made, but as an alternative he was
given the opportunity of paying a sum of Rs. 500.
The facts of the case as related by the prosecution are that, on information
received, the excise inspector went down to Mankulam with a fairly strong force
and in the early morning they saw the car they were waiting for coming in the
direction of Jaffna. They obstructed the road, stopped the car, and on searching
it they found seven bags containing arrack in sealed bottles, that is to say,
197 bottles of arrack in the back part of the car.
The second accused was driving, the third accused was sitting by his side, and
the first accused was lying on the bags of arrack.
The first accused having pleaded guilty, the question really arises whether the
second and third accused can be convicted either of possession or of
transportation. The further question arises: " If they are convicted of
possession can they be also convicted of transportation and vice versa ?" .
The learned Magistrate took the view that although the first accused pleaded
guilty, the statements made by the second and third accused are such as are
inadequate to discharge the burden cast on them by section 50 of the Excise
Ordinance. He says their demeanour in the witness box was very unsatisfactory.
Section 50 of the Excise Ordinance provides that in prosecutions under section
43 which deals with transportation and possession of excisable articles it shall
be presumed, until the contrary is proved, that the accused person has committed
an
offence under that section in respect of the
excisable articles for the possession of which, or for his conduct in that
connection is such, he is unable to account for satisfactorily. I take this to
mean that where three people are travelling at night in a car with a large
quantity of arrack the burden is cast upon each of them to explain his conduct
in regard to that arrack, and unless be does so to the satisfaction of the Court
he may be presumed to have committed the offence with which he is charged,
whether that offence be possession or transportation. In cases where the point
to be decided is conscious possession of an article, much must necessarily turn
on the facts of each particular case. One case cited was where a packet of ganja
was found concealed in the roof of a bullock cart and it was held that the
people travelling in the bullock cart could not be held to have guilty knowledge
of its presence.
The Magist
